Wednesday, February 18, 2009

Freedom's Just Another Word For I've Got A Lot To Lose

We all like freedom. It’s fun. It’s attractive. In a world of endless responsibilities, we want to do what we want.

But freedom can be exploited. It can be used. Conservatives have been doing it for hundreds of years to support political goals hidden just under the surface of their platitudes. Scratch a coin gilded with rhetoric of freedom, and you may find corruption just beneath the surface.

Take the famous case of Lochner v. New York, decided by the Supreme Court in 1905. A conservative majority struck down a law passed in the New York legislature and enacted by the governor that limited the hours of a baker to ten hours a day. Expert testimony showed that bakers worked long, hard hours in debilitating conditions resulting in a host of ailments that culminated in early death rarely far after their 50th birthday. At the turn of the century, the progressive movement was making great strides enacting new social legislation that employed the police power of the States to protect the health and welfare of citizens. These labor laws enriched the lives of individuals as well as increased the productivity and lifespan of the State’s workers.

It should come as no surprise that conservatives were uniformly opposed to such laws. The eight-hour workday, bans on child labor, heightened safety requirements and other regulations were expensive. While they raised the living standards of the workers, they took money out of the pockets of the wealthy few who controlled the system. Democracy cannot sustain an oligarchy. The demands of rights for the masses necessarily impinge on the wealth and power of the owners of the system.

Luckily for them, they had allies on the Supreme Court. In a sneaky opinion, Justice Peckham argued that the law protecting the health and welfare of bakers by limiting them to a sixty-hour workweek was not an “appropriate and legitimate end” for legislation. “There can be no fair doubt,” he wrote, “that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right of labor, and with the right of free contact on the part of the individual, either as employer or employee.” Peckham dismissed democratic legislation with the wave of the hand in the name of that golden veneer of liberty, conveniently glossing over true conservative intentions. “Freedom of contract” was in danger, and the Fourteenth Amendment came galloping to the rescue.

It all sounds fair and high-minded, until one scratches off the gloss and realizes what is actually happening here. The conservatives on the bench used concerns about liberty to strip away the protections the people fought hard to enshrine in law. In his dissent, Judge Oliver Wendell Holmes wrote, “the word liberty in the 14th Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.” There is no doubt that freedom is an important virtue, and it must be protected when it is threatened. But freedom can also be used as a tool of the ruling class to pervert the will of the people and maintain their grip on the levers of power.

For the last eight years, we’ve watched as another group of rulers have used the language of freedom to manipulate and subvert the popular will in liberty’s name. In almost no area has this been clearer than in the Bush Administration’s relationship with organized labor. When polled, healthy majorities of American workers say that they would like to join a Union if given an opportunity. Yet today less than 9% of American workers are unionized. What accounts for this yawning gap between workers’ wants and reality is a labor system that is broken. It is a system that incentivizes intimidation, dishonesty and delay.

For these reasons, while he was in the Senate, President Obama sponsored the Employment Free Choice Act. “The substance of the EFCA would amend existing labor law in the US to allow unions to gain official recognition in a workplace through a majority of workers signing authorization cards and avoid the perilous and employer-dominated election route. Once a union is certified, employers have to begin sitting down with the union within ten days. If no deal is reached, government mediators can force employers to sign a first contract, even without the vote of workers. The EFCA also would drastically increase the penalties companies face for violating workers rights, such as with firing workers for organizing, which happen at record rates in the US compared to the rest of the industrialized world. Workers could receive up to three times the back pay owed and companies could be fined up to $20,000 for willful or repeated violations.” (Source: IWW).

It will come as no surprise that, although this legislation passed through the House last year, it was held up by conservative Senators in the upper chamber. Their main objection, which they have pretty successfully turned into the narrative now dominating debate over the act, is the provision that allows workers to sign authorization cards rather than participate in a closed ballot election. Using the language of liberty once again, conservatives have dominated the discussion by arguing that the Act would take away worker “freedom” to vote whether or not to have a Union.

If we’ve learned anything from history, we should begin to get very suspicious when Conservatives begin to use vague concerns about liberty to quash worker’s rights.The plain truth is that the current Union election process is broken. Among those actually struggling to organize workers for the past several decades, it is widely known that the current process allows business owners to drag out the election process for many months. In the process, Union agitators are fired, employees are intimidated with threats, and resorts to violence are not uncommon.

Let me share just one example of a story relayed to me today by Ed Chew, Director of Legal Affairs for the UFCW Local 1776. He told us of a manufacturing plant in the Northeast where the workers had engaged in a long battle for unionization. Finally, the Election Day came. Hundreds of workers lined up, excited to cast their ballots; many spoke only broken English, but they understood the benefits that a Union would bring to them. And so they lined up, and they waited. And waited. It was a long, tedious process of paper balloting, and finally, while hundreds of workers were still in line, waiting to vote, managers from the plant began walking down the line telling people the vote was over; there was no more time; people had to go home. Confused and intimidated by their bosses, over a hundred and fifty people left, and when the ballots were counted the next day, the Union failed by only 72 votes. Soon thereafter, 75% of the workers in that plant were fired. The Union complained to the National Labor Relations Board, but in the end, even though the plant was found guilty of disturbing the election, they wouldn’t even admit it. They posted a sign in their plant which states that they didn’t do anything wrong; but if they did, they promise never to do it again. Meanwhile, no Union will ever organize at this plant. Most of the workers have been laid off, and those that remain are probably too traumatized by the whole experience to ever support another attempt at organization.

Allowing for majority sign ups in addition to traditional elections will give workers a profound new ability to avoid the unfair and even dangerous processes of the past and restore a balance between the powers of owners and the people they employ. With the EFCA, progressives are once again attempting to guarantee the health and welfare of working people by passing legislation that will help them collectively bargain. Most employment is at will, but with a collective bargaining agreement, these powerless people will suddenly get their own freedom of contract.

Unsurprisingly, Conservatives are not interested in this contractual liberty. For them, liberty is an excuse, a convenient buzzword; something to be exploited when it is politically expedient, then tucked away when it doesn’t serve their (not-so-hidden) agenda. Americans need to learn the lessons of history. We cannot let the Justice Peckham’s of the world decide what it means for Americans to be free. Conservatives are using the language of liberty to defeat this legislation because they’ve seen it work in the past. We can’t let them. When we pass this important bill, we will be taking one great step forward in removing the shallow gloss off of this second Gilded Age.

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About Me

am a licensed attorney in the state of Florida, with a J.D. from the University of Pennsylvania Law School and a B.A. from Brandeis University. I am concerned about social justice, the environment, and politics. I hope my readers will find informed, critical posts that will help you make reasoned judgments about the important issues facing our world. I also publish occasional original poetry and essays.